Isbester v Knox City Council - [2014] VSC 286

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW & APPEALS LIST

S CI 2013 6020

TANIA ISBESTER	Plaintiff
v
KNOX CITY COUNCIL	Defendant

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JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	20-21, 24, 26-27 February and 7 March 2014
DATE OF JUDGMENT:	17 June 2014
CASE MAY BE CITED AS:	Isbester v Knox City Council
MEDIUM NEUTRAL CITATION:	[2014] VSC 286

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ADMINISTRATIVE LAW – Judicial review – Decision of the Council to destroy a dog following a series of attacks – Whether the decision affected by apprehended bias and bad faith - Whether the Council denied the plaintiff procedural fairness – Whether the reasons for decision are inadequate– Whether the Council’s decision to destroy the dog was manifestly unreasonable – Proceeding dismissed - Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 - Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 - Gubbins v Wyndham City Council (2004) 9 VR 620 - McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504 - East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605 - Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 – ss 29(4) and 84P of the Domestic Animals Act1994 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Kendall QC Ms J Taylor	Phoenix Legal Solutions
For the Defendant	Mr R Knowles	Maddocks

HER HONOUR:

Introduction

The plaintiff has brought a proceeding under O56 of the Supreme Court (General Civil Procedure) Rules 2005 seeking to have set aside as unlawful the decision made by the Knox City Council on 15 October 2013 to destroy her dog, Izzy.[1]
[1]She also seeks a permanent injunction restraining the Council from exercising any powers in respect of Izzy by reason of the plaintiff’s guilty plea entered on 12 September 2013 in the Magistrates’ Court of Victoria.

Izzy is a four year old Staffordshire Terrier. She was a family pet and one of three Staffordshire Terrier dogs - Izzy, Bub and Jock - previously owned by the plaintiff. In August 2012 and in May and June 2013, Izzy, Bub and Jock were involved (in various combinations) in attacks on other dogs, having on each occasion escaped from the plaintiff’s backyard and wandered unattended into the surrounding streets. Jock was the youngest of the three dogs, and the only male. Jock was destroyed on 9 June 2013 immediately following two savage attacks on small dogs that also resulted in serious injuries to their owners. The Council seized Izzy and Bub, and Izzy has remained impounded ever since.

For the reasons that follow, none of the grounds for review is made out and the proceeding must be dismissed.

Background
Statutory framework

The legislation pursuant to which the Council’s decision to destroy Izzy was made is the Domestic Animals Act1994 (Vic) (the ‘Act’).

Section 84P of the Act relevantly provides:

The Council may destroy a dog which has been seized under this Part…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] VSC 286
Decision Date: 17 June 2014

CaseChat Overview and Summary

In the matter of Isbester v Knox City Council, the plaintiff sought judicial review of the Council’s decision to destroy a dog following a series of attacks. The case was heard in the Supreme Court of Victoria. The plaintiff argued that the Council’s decision was affected by apprehended bias and bad faith, that the Council had denied the plaintiff procedural fairness, and that the reasons provided for the decision were inadequate. Furthermore, the plaintiff contended that the Council’s decision to destroy the dog was manifestly unreasonable.

The court was required to determine whether the decision was influenced by apprehended bias and bad faith, whether procedural fairness was denied, and if the reasons provided were adequate. The court also had to assess whether the decision to destroy the dog was manifestly unreasonable. The court considered the principles established in Ebner v Official Trustee in Bankruptcy, Minister for Immigration and Multicultural Affairs v Jia Legeng, Gubbins v Wyndham City Council, McGovern v Ku-Ring-Gai Council, East Melbourne Group Inc v Minister for Planning, and Minister for Immigration and Citizenship v Li, as well as sections 29(4) and 84P of the Domestic Animals Act 1994 (Vic).

The court found that the Council’s decision was not affected by apprehended bias or bad faith, and that procedural fairness had not been denied. The court also held that the reasons provided for the decision were adequate and that the decision to destroy the dog was not manifestly unreasonable. The court found that the Council had properly exercised its discretion under the Domestic Animals Act 1994 (Vic), and the proceeding was dismissed.

The court dismissed the proceeding and made no orders for costs.

Orders